intro to Law notes 1st

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intro to Law notes 1st
2013-10-28 19:49:28

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  1. tort
    civil wrong
  2. Personal jurisdiction
    • court has authority to rule on the law and power
    • to enforce its decision upon a party.
  3. where you have the event take place in one
    state, and trial in another state
    • you will check forum states body of law called
    • “conflicts of law” see which state’s substantive rule of law will apply
  4. Courts of equity
  5. church related laws that determines what is
    • right under these circumstances; requires or prohibit people from doing
    • something
  6. go to federal court when...
    diversity of interests plus over $75,000 in damages
  7. Erie RR vs. Thompkins
  8. Appeals court looked back at Swift vs. Tysons
    • (1842) and said from now on, fed court will apply law of state: wiped out
    • federal case laws on April 25, 1938, known as the Eric doctrine
  9. how does Mass deal with laws of contract
    apply law of state where contract was made
  10. MA tort law
    apply law of state where incident occured
  11. Personal Jurisdiction
    bring lawsuit to where you find defendant (person who stands to lose)
  12. what do we resolve first? issues of law or issues of fact?
    we resolve issues of laws first
  13. what is issues of law?
    listen to both sides, detemine what law is.
  14. motion to dismiss (demurr)
    no rule of law that would give relief
  15. what are the defendant's choices after filed complaint by plaintiff?
    motion to dismiss, general denial, counterclaim (counter complaint)
  16. stare decisis
    following precedence and not unsettling that which already settled
  17. percurium
    author of court decision does not put her name on the decision, court applies statute as written by congress; case laws interpret statues
  18. case laws
    interpret statutes (read legislative history, and read gaps as Congress meant it); look at statue spply those with essentially similar facts
  19. what is the process of discovery
  20. discovery, depositions, find law (research) find
    facts, extract law with assurance court wouldn’t change precedent
  21. peremptory change
  22. built in instinct that exclude people from cause
    or exclude them just because (may be influenced by appearance, manner)
  23. business of court
    sit in judgment and fairly, evenly administer justice
  24. difference in procedure between criminal and civil case?
    prosecution starts case in civil case; criminal attorney first laws out laws
  25. objections to leading questions
    questions that contain answers within the question; no leading question in direct examination
  26. cross examination
    cut down damage done to your case by direct examination: try to show bias on their part, prior inconsistent statements in depositions, defects in testimonial falculties
  27. heresay
    out of court statement by person not under oath, who is not now testifying which is offered for the truth of the content of the statement
  28. party opponent exception
    person doing damage is in court under oath doing cross examination (civil case; you can tell about what other party said as well)
  29. exceptions to heresay
    • -party opponent exception
    • -dying declaration
    • -attorney client privilege (when their talk is overheard--this is an exception to heresay)
    • -husband wife privilege
    • -doctor patient privilege (doctor only testifies in area of expertise, not what he have admitted to you
    • clergy penatant: don't have to say what was said in confession
  30. what is the burden of proof in a civil lawsuit
    based on preponderous of evidence (clear and convincing evidence)
  31. what is burden of proof in criminal case?
    state beyond reasonable doubt
  32. what the process of the trial
    opening statements: plaintiff calls witness, defendant calls witness, final instructions, attorneys close, defendant needs burden of proof, close case
  33. res judicate
    execution of judgement

    • Dispute of affair is over; can’t come back to
    • same dispute once you sign release and judgment is executed
  34. what does the due process of law do?
    ensure substantive and procedural fairness (equal protection clause)
  35. what are three ways to conduct a valid search?
    • warrant: obtained from appearing in court, in written statement of facts and circumstances to get warrant, amount to probable cause
    • search incident to an arrest: search around area of arrest
    • threshold inquiry (stop and frisk) if crime committed in an area and police have reasonable suspicion, police can stop, question, and partial search
  36. Mapp vs. Ohio
  37. fruits of illegal search can never
    be used in legal court
  38. what does the bill of rights do?
    it contains fundamental safeguards of liberty, immunity from federal abridgment--are equally protected by the 14th amendment, due process clause
  39. grand jury
    • citizens listen to the case, witness don't bring attorney; does state have enough evidence to charge against person; protection from obligatory conduct
    • private (doesnt' go out in public unless grand jury says) no cross examination; easy to get indictment
  40. which amendment is right to not testify against himself in court?
  41. 14th grabbing 5th and 4th
    and turning it to states
  42. rules of no self-incrimination
    • Protects only testimonial self incrimination;
    • nor shall be compelled in any criminal case to be a witness against himself

    • o  
    • Court may grant immunity to people to build
    • evidence against major criminal by allowing people to not be subject to
    • incrimination by saying self-incriminating things

    • o  
    • Perjury: id you don’t say what you know
    • truthfully
  43. emanant domain
  44. taking private property for public use need just
  45. powell vs. alabama
    right to council (equal protection clause)
  46. betts vs. brady
  47. charged with armed robbery without council, USS
    says it is left up to state: not fundamental safeguards (not that important)
  48. Gedeon vs. Waimwright
  49. breaking pool hall, no $$ or council (attorneys
    • are appointed only in capital cases bc of Powell vs. Ala; this is small case
    • Florida state will not pay
  50. Rite of Habeous Corpus
  51. you have your body, person under arrest needs to
    • be brought before court, ensures prisioner can be released from unlawful
    • detention. right to council at trial @ Gedeon (5000 prisoners released b/c of
    • no council)
  52. Miranda vs. Arizona 1966
  53. right to council in custody; indigent
  54. due process of law
  55. Prior to any questions, he/she right to remain
    • silent and anything he says could be used against him, and right to an
    • attorney, either retain or appointed if you are indigent
  56. US. Vs. Wade
  57. right to council at a lineup. Attorney can
    observe what’s going on and make objections
  58. 1980 Rhode Island vs. InMs
    • if someone voluntarily told something, they can
    • use it as evidence (Dickerson vs. U.S. 2000)

    • o  
    • right to council from 6th amendment
    • by confront witness/cross examination
  59. closer look at 1st amendment
    • march/say what you want to say many interfering
    • with other people’s rights

    • o  
    • need permit to march, for people to clear the
    • roads (need to say content neutral things

    • o  
    • police can give time and place but can’t favor
    • one religion over another in times of peaceful protest
  60. what are types of protests?
    • speech 
    • action
    • pure political
    • economic speech
    • obscene
  61. types of restraint
  62. Miller vs. CA
    • asic guidelines for the trial of fact, must be
    • contemporary community standards, trial of fact is jury (decides community standards), they are from the
    • community
  63. state reserves police powers
    • deals with health, welfare, safety, and morality
    • of the citizens of the state
  64. slander (spoken)
    • remark made that tend to hold individual up to
    • scorn and ridicule in the community
  65. Cause of action
  66. existing legal theory: meet all elements of
    cause of action
  67. libel
    publication + remark
  68. public figures have the added burden of malice
    prove malice on part of person or reckless regard for the truth
  69. law to right to privacy
  70. any person uses the likeness of another without
    • their written consent for advertising or purposes of trade is guilty of
    • misdemeanor.
  71. right of publicity
  72. no one can trade on the good name of a public
    figure or individual who is not a public figure